JUDGEMENT

          Complainant by filing this complaint has submitted that he is a customer of Axis Bank, Burrabazar Branch having Current Account No.277010200027016 under Consumer Identity No.277010979 with the op no.1.  It is the case of the complainant that on 26.10.2009 a person identifying himself as Abhishek Mookherjee, an Executive of Axis Bank, Kankurgachi Branch, Kolkata came to the complainant and produced his visiting card and offered the complainant to open a Cash-Credit Account in the name of the complainant and on that pretext he took the Bank Statement and a blank undated and unsigned cheque bearing No.280098 of Axis Bank, Burrabazar Branch, Kolkata from the complainant.

          Further on 27.10.2009 complainant went to Axis Bank to know regarding the development of sanctioning the said Cash-Credit Account in the name of the complainant and checked the status of her Current Account  and after observing that she was shocked and surprised that an amount of Rs.1,22,000/- only was withdrawn from the account of the complainant and no Cash-Credit account in her name was under process.

          On the same day, the complainant informed the op no.1 regarding the same by a letter dated 27.10.2009 and applied for a copy of the cheque whereby the amount of Rs.1,22,000/- only was withdrawn and observing the cheque, the complainant was surprised and it was found that by negligent manner the op Bank Officials put the seal and signature on the said cheque which were not of the complainant and the same was forged.  That the Bank Officials without verifying the seal and signature on the said cheque made payment to the forger recipient which is a gross negligence on the part of the Bank Officials and even after informing the matter to the op no.1 practically op did not take any step and did not pay any heed to that.

          Thereafter complainant lodged a written complaint on 29.10.2009 to the Officer-in-charge, Posta Police Station, Kolkata regarding the forgery.  Thereafter the investigating officer of Posta Police Station enquired into the matter and a case has been started and on 06.09.2011 the complainant gave a legal notice to both the ops through her Ld. Advocate regarding refund of the said amount.  But in respect of that no step was taken by the op and for which the complainant filed this complaint praying for redressal.

          Against that op no.1 Axis Bank by filing written statement submitted that in respect of cheque encashment is subject matter of FIR No. 194 dated-02.11.2009 which was filed at Posta Police Station, Kolkata, so the present complaint is not maintainable.  Further it was submitted that complainant is not a consumer because he runs a business maintaining Current Account No.277010200027016.  It is further alleged that the Abhishek Mookherjee was a cashier staff and he was interested cash counter activity and probably some other person appeared and complainant wrongly identified his as Abhishek Mookherjee who is working with Axis Bank and that was informed to the complainant vide letter dated 03.11.2009 and it was further reported to the complainant that the cheque No.280098 for Rs.1,22,000/- was produced at the counter of Axis Bank, Burrabazar Branch on 26.10.2009 and confirming and verifying the signature of the account holder, it was passed as the said cheque was apparently in order.  Moreover as per settled Law a bearer cheque can be encashed by third party across the counter.

          Lastly it is submitted that the question of forgery is a complex issue and only competent Civil Court can adjudicate on such matter after adducing evidence in the matter.  So, this matter falls beyond the jurisdiction of this Forum and in this regard the complicated question of fraud and cheating cannot be entertained at consumer forums.  To that effect the ruling reported in 1993 – (001)-CTJ-0107-NCDRC is applicable and they have also stated that the entire allegation is false and fabricated.  So the complaint should be dismissed.

                                             Decision with reasons

          On proper consideration of the entire complaint and the written version including the vital report of the Questioned Document Examination Bureau, Government of West Bengal, CID, Bhabani Bhawan dated 25.09.2012, it is found that regarding the questioned document cheque and its signature it was opined by the Director, Q.D.E.B., CID, West Bengal that the signature of questioned document (Manju Devi Somani) and specimen signature, several letters were found different from specimen signature of Manju Devi Somani and signature of M.D. Somani in questioned document (cheque) and for which the Director, QDEB, CID, West Bengal pointed that the questioned document were not the signature of the present complainant and this matter was referred by this present Forum and that opinion was received.  But against that no objection was made by the Bank Authority.  So, invariably relying upon the report of the hand writing expert and which is unchallenged up to this stage we are convinced to hold that the cheque which was deposited for encashment and by which said amount was withdrawn from the account of the complainant and so it was not withdrawn by the complainant but some fictitious persons transacted the said cheque by signing and that signature is not of the complainant.  So, invariably it is proved beyond any manner of doubt that some fictitious persons produced the cheque and Bank Authority did not verify the seal and signatures of the complainant with the deposited cheque and cleared it.

          No doubt such an act on the part of the op is negligent in manner because it is settled principal of law that if any cheque is presented before Bank Authority, in that case it is the duty of the Bank Authority to apply scientific process to satisfy that signature of the account holder tallies and that cannot be anyway passed casually.  But in this case it is proved by expert opinion that the said cheque was used by some other person who puts signature of complainant and withdrew it and invariably that fellow was known to the Bank employees who help to withdraw it.  Considering that fact we are convinced that complainant is entitled to get back the amount from the op Bank Authority for the negligent act of the op for passing aforesaid cheque of a sum of Rs.1,22,000/- what was withdrawn by fictitious person.

          Moreover in this case, complainant has stated that one employee of the Bank went to her to collect the cheque and subsequently he somehow managed to procure that amount and actually there was no fault on the part of complainant.  But it was fault on the part of the Axis Bank.

          But in this case vital question is whether it is very complicated question to be decided on merit.  But in this regard no doubt we have relied upon the ruling as referred by the ops passed in 1993 – (001)-CTJ-0107-NCDRC and also 1997 -0(005)-CTJ-0688-NCDRC and fact remains that police case had been started.  But it is principle of law that regarding service and negligent service of the Bank, the Consumer Forum can decide the case and in the present case hand writing expert opinion is vital as it was called for by this Forum after sending specimen signature and questioned document by the Bank and Axis Bank got that report but no challenge was made.  So, in that case we find whatever may be the position of the Criminal Proceedings, but in this case it is proved by vital evidence of the hand writing expert.  So, the present fact is completely different from the fact as discussed in the said two decisions of the National Commission.

          In the light of the above observation and also considering the fact, it is proved that this Forum has jurisdiction to decide this case when expert opinion regarding the questioned document was collected by the Forum on consent of the parties and after production of questioned document including specimen signature of the complainant to the hand writing expert.

          Moreover the op has tried to convince that complainant is not a consumer.  But we have gathered that there is no such document to show that the complainant has been running a commercial business.  But she is a house wife and she runs her business for her own maintenance and so she is a consumer in the eye of law and in this regard the ruling reported in FA-448-2008 disposed of on 13.08.2009 by Consumer Disputes Redressal Commission, Maharastra is not applicable.  On the contrary it is proved that complainant is a consumer in the eye of law and for which she is entitled to get back the entire amount what had been withdrawn from her account by some forged person by using her cheque invariably for the negligent and deficient manner of service of Bank Authority.

          Thus, the complaint succeeds.

          Hence, it is

                                                   ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against of Axis Bank and op Bank is hereby directed to refund the sum of Rs.1,22,000/- to the account of the complainant or to pay it by a Bank Draft to the complainant within one month from the date of this order and shall have to pay a compensation of Rs.25,000/- to the complainant for harassing and causing mental pain and agony and also for adopting unfair trade practice in this regard to the complainant.  But it must be paid within one month from the date of this order. 

          Op is directed to pay the entire decretal amount within one month from the date of this order failing which for each day’s delay a sum of Rs.200/- per day shall be assessed as punitive damages what shall be paid day to day to the State Consumer Welfare Fund till full satisfaction of the decree and if op does not comply the order and disobeys in that case penal action shall be taken against the op for which op may also be send to jail for non-compliance of the order.